IN THE CASE OF:	

		BOARD DATE:	30 June 2009

		DOCKET NUMBER:  AR20090003727 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests his undesirable discharge be upgraded to a fully honorable discharge or at least a general discharge.

2.  The applicant states his performance, appearance, and aptitude received excellent praises from boot camp to his deployment to Germany until a new staff sergeant was assigned as his platoon sergeant.  He states the new platoon sergeant seemed to not care for him and a few of the other privates under his command.  He states the platoon sergeant was a demoralizing person and after 4 months he could no longer take the demoralization and he left to return home and talk with his parents about the situation.  He states that 2 months after his return to his unit he left again and returned home.  He states he visited a Judge Advocate General lawyer and was told his record was too good to qualify for a general discharge for clemency and that he should stay absent without leave (AWOL) for at least 60 days.  He states he has been married to his wife for 34 years and is a stable member of his community.  He also states he has no criminal record.

3.  The applicant provides a deposition, dated 20 May 1974; a portion of testimony from his special court-martial; and a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in support of his application.



CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military personnel records show he enlisted in the Regular Army on 16 June 1972 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty 12F (Combat Engineer Tracked Vehicle Crewman).

3.  On 27 January 1973, the applicant was assigned to Company A, 16th Engineer Battalion, 1st Armored Division, in Germany.  On 1 July 1973, he was promoted to the rank of private first class/pay grade E-3.

4.  On 7 January 1974, the applicant pled guilty and was found guilty by a summary court-martial of being AWOL from 3 December 1973 to 11 December 1973.  His sentence consisted of reduction to the rank of private/pay grade E-2, forfeiture of $200.00 pay for 1 month, and restriction for a period of 30 days.  However, it was recommended that $150.00 of the forfeiture be suspended until 1 April 1974.  On 7 January 1974, the convening authority approved the sentence, but suspended the execution of that portion adjudging a forfeiture in excess of $100.00 for 1 month until 1 April 1974.

5.  On 18 January 1974, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for being absent from his appointed place of duty.

6.  On 20 May 1974, the applicant pled guilty and was found guilty by a special court-martial authorized to sentence him to a bad conduct discharge of being AWOL from 2 February 1974 to 17 April 1974.  His sentence consisted of reduction to the rank of private/pay grade E-1, forfeiture of $200.00 pay per month for 3 months, and 3 months of confinement at hard labor.  The military judge recommended that the applicant be sent to the Retraining Brigade at Fort Riley, KS.  The convening authority approved the sentence on 16 July 1974.
7.  In the deposition, dated 20 May 1974, a staff sergeant from the applicant's unit stated that the new platoon sergeant came down hard on the applicant and three other men in the unit.  The staff sergeant stated he felt the platoon sergeant harassed the four men because of their mechanical ability and suspected drug abuse.  The staff sergeant stated he had never had any problems with the applicant and would have him in his unit today.

8.  The applicant submitted a portion of the testimony at his special court-martial from a staff sergeant in his unit.  Under direct examination the staff sergeant testified that the platoon sergeant seemed to ride the applicant quite a bit unduly.  He stated the applicant did not cause him any problems and he would take the applicant as a member in his unit.  Under cross-examination, the staff sergeant stated the platoon sergeant seemed to show a little bit of partiality here and there, but the applicant was not the only man with whom he was hard with, he was also hard with other people in the unit.

9.  On 17 June 1974, the applicant was assigned to Unit 6AB, United States Army Retraining Brigade, at Fort Riley, KS.

10  On 6 July 1974, the applicant's commander recommended the applicant be discharged from the service as unfit by reason of a pattern of shirking.  Enclosure 1 to the commander's recommendation listed discreditable acts by the applicant during the period from 7 January 1974 to 3 July 1974.  The commander requested an exception to policy requiring recycling prior to elimination.

11.  On 18 July 1974, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations) for unfitness.  He waived consideration of his case by a board officers and personal appearance before such a board.  The applicant stated that he was not submitting statements in his own behalf and that he waived representation by counsel.

12.  The applicant also acknowledged that as the result of issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life.

13.  On 18 July 1974, the applicant's commander recommended him for discharge under the provisions of chapter 13 of Army Regulation 635-200 by reason of unfitness because of an established pattern for shirking.  The commander stated the applicant had received counseling by members of the leadership teams and members of the professional staff agencies.  The commander stated that it was anticipated that further correctional intervention would be unsuccessful.  The commander stated the applicant had received considerable counseling since his arrival at the training brigade by social workers, the leadership team, and unit cadre.  The commander stated the applicant had not responded favorably to counseling nor to duties given to him and he did not meet the criteria for further rehabilitation attempts.  The commander also recommended that the requirements for further counseling and rehabilitation be waived.

14.  On 23 July 1974, the appropriate authority waived rehabilitative reassignment, directed that the applicant be discharged under the provisions of chapter 13 of Army Regulation 635-200, and that he be furnished an Undesirable Discharge Certificate.

15.  On 25 July 1974, the applicant was discharged under the provisions of chapter 13 of Army Regulation 635-200 by reason of unfitness – frequent involvement in incidents of a discreditable nature with authorities.  He was issued an Undesirable Discharge Certificate.  He had completed 1 year, 8 months, and 12 days of active service that was characterized as under conditions other than honorable.  He had 148 days of time lost.

16.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5a, then in effect, provided for discharge of individuals for unfitness.  Among the reasons for unfitness were frequent incidents of a discreditable nature with civil or military authorities and an established pattern for shirking.  This regulation further provided that an individual separated for unfitness would be furnished an undesirable discharge certificate, except that an honorable or general discharge certificate could have been issued if the individual had been awarded a personal decoration or if warranted by the particular circumstances in their case.

18.  Army Regulation 635-200 provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

19.  Army Regulation 635-200 provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was a good Soldier until the assignment of a new platoon sergeant to his unit.  Evidence from two other staff sergeants in the applicant's unit agreed that the new platoon sergeant's leadership style seemed to be a little harsh.  However, they also agree the applicant was not the only Soldier in the unit the platoon sergeant was unduly harsh with.

2.  However, once the applicant was transferred to Fort Riley, KS, and away from the platoon sergeant, his attitude and demeanor did not improve.  The evidence shows he continued shirking his responsibilities and refusing to comply with counseling provided to him.  Therefore, his contention lacks credibility as to the platoon sergeant being the reason for his unacceptable behavior.

3.  Evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

4.  A review of the applicant's record of service shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's entire record of service was considered.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

6.  The applicant's statements concerning his post-service achievements and conduct are noted.  However, good post-service conduct alone is not normally sufficient for upgrading a properly issued discharge and the ABCMR does not correct records based on the passage of time.

7.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to an honorable or to a general discharge.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________X_____________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090003727



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ABCMR Record of Proceedings (cont)                                         AR20090003727



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